Tag Archives: Fourth Amendment

Dan King comes back to the Young Voices podcast to share the latest in the long story of government infringing on civil liberties. He wrote in the Observer about technology law enforcement used to fight terrorism that is now being applied to immigration enforcement.

Senators Rand Paul (R-KY) and Ron Wyden (D-OR) recently introduced a much-needed, bipartisan Senate bill to combat mobile device searches. Reps. Jared Polis (D-CO.) and Blake Farenthold (R-TX) also introduced this bill to the House. The “Protecting Data at the Border” Act is a vital step towards protecting the American people from one of the most egregious forms of government overreach.

The bipartisan, bicameral bill would shut down what Wyden calls a “legal Bermuda Triangle,” which allows the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) to search people’s mobile devices at the United States border without a warrant. If passed, the bill would require law enforcement agencies to obtain a “warrant based on probable cause” before seizing the device of “a U.S. person.” It also prevents law enforcement from denying or delaying entry to the country if a person refuses to turn over PIN numbers, passwords, or social media account information.

Current device search policy applies to U.S. citizens and noncitizens alike and allows the federal government to search cell phones, tablets, and other mobile devices at border crossings without any suspicion of criminal wrongdoing. In 2009, after concerns were raised about the legality of the policy, the DHS conducted a civil liberties impact assessment, which came to the troubling conclusion that such searches are justified. The summary reads:

“We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits.”

In other words: Fourth Amendment need not apply.

It is abundantly clear that this policy treads all over civil liberties. As the American Civil Liberties Union points out, federal authorities are granted “broader” power near border areas. But those powers do not allow them blatantly to violate Fourth Amendment protections against unreasonable searches and seizures.

Recently, Associate Justice Sonia Sotomayor came to the defense of the Fourth Amendment in the Supreme Court case Utah v. Strieff. In her dissent, Sotomayor thundered, “The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights…This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong.”

The case dealt with whether a warrant discovered after an illegal stop makes the stop legitimate. Additionally, if a warrant is found, anything discovered after the stop, like drugs, can be used against an individual in court.

The Fourth Amendment is supposed to protect citizens against unreasonable search and seizures from the government. Additionally, anything discovered after an illegal search is not admissible in court as evidence. The ruling is not only bad for the Fourth Amendment, but also for minority communities.

For example, data compiled by the New York Civil Liberties Union (NYCLU) found that, in 2015, New Yorkers were “stopped and frisked” by the police 22,939 times. Of those searched, 18,353 (80%) were totally innocent,12,223 (54%) were black, and 6,598 (29%) were Latino.

Sotomayor, a Latina-American born and raised in New York, offers a personal perspective on the effect of unreasonable searches on minority communities: “For generations, black and brown parents have given their children ‘the talk’— instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them.”

Over criminalization disproportionately affects the colored community, and Sotomayor takes it head on. Ceding more of the Fourth Amendment to the police is not good for police or citizens of any color. It will make both police and citizens suspicious of each other, which will only further divide them.